Human Resources News & Insights

Handling the tricky questions in FMLA intermittent leave

It’s a given: Intermittent FMLA leave is a giant thorn in the side of HR people everywhere. But not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members.

The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call.

It’s not always simple, however.

If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility’s not automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility.

Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time.

After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition.

The only time it affected her was when it was time to go to work.

Sorry, the court said. Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.

 That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

Designating leave retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

Example: An employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia.

Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.”

The key here is that the company acted quickly – within two days of being notified of the qualifying leave.

The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation.

It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees’ PTO

First, a no-no: Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.

And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it’s as simple as taking an employee aside and saying, “I know you’ve got to go to physical therapy. But these 10 o’clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?”

The firing question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers can’t be fired for taking leave. But employers can lay off, discipline and terminate those employees who violate company policies or perform poorly.

When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave.

So companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave.

But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence.

And courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave?

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee went off the job.


In HR? Come to BridgeCon

A gathering of HR and L&D leaders in legendary Park City, Utah – June 2nd – 4th.

Learn about career development, building better leaders, and employee engagement strategies.

Its the Employee Development Conference featuring top speakers like Josh Bersin, Britt Andreatta and more.

Learn More About BridgeCon Here >>

Print Friendly

Subscribe Today

Get the latest and greatest Human Resources news and insights delivered to your inbox.


  1. I have a very tricky question. I’m on intermittent FMLA for anxiety and panic disorder. I called out of work on my Friday using FMLA due to anxiety. Then on my weekend I came down with a head & chest cold. I then called out again on my Monday and said it was NOT FMLA due to the fact I was just sick and didn’t need to use FMLA. Now, my company has suspended me pending investigation and they keep asking me why I used FMLA on my Friday and then didn’t use it on my Monday? I have a feeling I’m going to be terminated for this, but I don’t understand what I did wrong. I was trying to do what I thought was right in not abusing the FMLA when I didn’t need it. Please help me understand what I did, and can I rightfully be terminated for this? Thank you!

  2. Clare Hernandez says:

    I’m on FMLA until December 2014. Anxiety, depression, panic and I’ve been approved for years. I’ve been at my company for 25 years and they are making me so sick. I don’t want to quit. I’m not going to quit because my manager has absolutely no common sense, or compassion (she docked me two days when my Mom died). She is documenting me up the butt. She has been my manager for 10 years and I was perfect before her. Should I try to find an atty to help me. I think I deserve some sort of package – unemployment and two weeks for every year I’ve worked there. Big company, legal secretary and they’ve taken at least 10 years off my life.

  3. Kira Marie Cobbs Lemaster says:

    I am on intermitten Fmla due to serious migraines and illness associated with my pregnancy and have been off quite a bit this month over it. I worry bc my manager hasn’t ever liked me and is kind of nasty when I call in to call off. I don’t want to loose my job before having this baby, but she has me worried that she’s looking for some way of doing just that. Am I safe as long as my absences are approved under my Fmla? And if a day isn’t covered by my Fmla is she able to use that against me if I’m not over the companies guidelines for call offs? I had used call offs for this condition before I was aware I could even file for fmla

  4. My wife is going to have a baby in April. I plan on taking FMLA for 3 weeks. My job transfers a lot of people to different states. So my question is, can my employer make me transfer when i come back as long as the job is equivalent to what I had or is that against my rights?

  5. I am a sales rep. I have a blood disease that requires treatment weekly. My treatments require time out of the field and my sales are suffering. Can I be fired during intermittent leave if my sales fall during this time?

  6. I am wondering if anyone knows….

    If i ask my HR department to notify my department of my absence due to FMLA, can they deny and say it’s my responsibility to notify them?

  7. Dan in indiana says:

    I was a city park supt. I took fmla intermittent leave on dec 31. I was fired on that day by a new mayor . The city has no fmla policy. I was told on more than one occasion that paperwork just needed to be turned in prior to using it. No mention of 30 day notice. They didn’t know what to do with the paperwork when it was turned in in December. They had no policy at all listed in our handbook. We had to turn in time cards early that pay due to the holiday. I was told on man 4th that my insurance ended on dec 31. I was going to try to get my chemo on dec 31 or jan 4. My time card indicated that I would be back on jan 5th

  8. Sandy Brunson says:

    I have been on FMLA medical leave due to my second bout with breast Cancer, I had surgery January 7, started Chemo treatments in March for 12 weeks, end of June started radiation therapy 5 days a week for 6 weeks driving 100 miles there and 100 back. Dr started me on medication end July, the medication was breaking my body down worse so started new medication end of August. DR trying to get my medication right so I can return to work, get a letter from work saying I have been terminated!!! Don’t know what is going on????? Any help would be appreciated.

  9. My FMLA for my daughter has expire she has lekumia
    I’m just waiting for her doctor to fill the paper work and now my work is trying to fire me because I don’t have FMLA from what I understand I still have FMLA I’m just waiting for her doctor to call me to pick them up. I need help

  10. I have a question. My son was diagnosed with terminal cancer and I went on fmla. I took some time off and started back one day then two days a week I have requested more hours and my manager would tell me their are no hours to give yet the majority of my co-workers are getting 20+ hours while I’m only getting 11 a week. I advised my availability 6 days a week. When asked about the hours I was told it was my eligibility I advised that I filled out a eligibility form showing 6 days. I spoke to her boss and my hours went up to 15 while the majority of my co-workers are still getting 20+. While at work I had two employees advise me that my manager told them she was not going to give me hours because I have a sick child and she doesn’t want me calling out. I spoke to her boss again to no avail and now my hours were dropped again down to 11. I show up every day I’m scheduled I am not late I have no disciplinary actions all my reviews have been above average. I have worked for this company for five years with no issues until recently. Out busy time is coming up and I asked for more hours and was told their is not any yet they just hired two more employees to work in our department who will be getting 20+ hours. Do I have any recourse?

  11. I have a tricky situation. Can a manager on medical leave fire me??

  12. Im on fmla and boss called my wife and asked what happened, its none of his business, is this a violation?

  13. anonymouscreedi says:

    I have intermittent FMLA for abdominal issues (colitis and endo metriosis) and migraines. If i cant work my scheduled shift at the job i have fmla, but feel better the next day. Am i able to go to my next job the second day?

  14. Tennille Tackett says:

    I have a severe stomach issue I have been dealing with my whole life but just recently in the last year it has become a more serious issue. I have ibs, acid reflux, issues with my lymph nodes in my bowel, and many gas/bloating issues. I was put on FMLA last year and really hasn’t been an issue. The last month though I will be fine and then within a matter of an hour I am in so much pain that I can’t stand up straight or are vomiting because the pain is so bad, so I have left 4-5 times early this month and now my boss is very upset with me saying I am disrupting work and I need something stating that when an episode starts I have to have in writing that I have to leave at a moment’s notice, which I can get but now it’s she has to talk to our main boss and hr before she can discuss it further with me. Do I need to be worried about anything?

  15. misstdiana says:

    So If I have a intermittent FMLA I have a question, can my employer require me to find my own coverage(person to work for me)? That is my direct supervisors latest tactic as well as having me call her directly when we have always texted and she says I have a pattern to my call offs, which I do not. I am on intermittent leave for a chronic illness(s) I feel like she is harrassing me.

  16. Melissia Thompson says:

    I was fired forna social media post that wa$ done while inwasnt working. The employer knew i was having surgery 16 days after this post was made. I was fired 7 days after post. However there were others that wrote on post and was not fired.. Im supposably not qualified for the fmla until the day after i have surgery.. Do i have legal actions here???

  17. Tamara Cate says:

    An employee takes and is granted approx 2 weeks short term disability to have an elective procedure. After this time they are clear to resume all work duties. May they file for intermittant disability for the doctor’s appointments ? ( there are only about 4 days in a one year window that they will need to come in for a follow up appointments ?

  18. subsciption love says:

    It’s an HR based website, the topic in this particular instance being FMLA. Did you catch up to that yet? Some individuals need resources, some websites provide that when getting out of bed to go to the library is not possible.

  19. Crystal Lynn says:

    I’m on intermittent fmla originally for spinal stenosis and other spinal issues, I also have IBS and fibromyalgia. Which the fibromyalgia is included in my FMLA. I have a private office that is close top the bathroom and now my boss wants to move me into another office with 5 other people and customers coming in and out. I struggle to get my job done as it is and this move is going to exacerbate my health issues and cause more stress which in turn causes flare ups and I’m afraid I may not make it to the bathroom on time as I have mobility issues.With this move, I will be required to over see other’s work something the manager is supposed to do but has failed. Can they do this to me?

  20. I have an fmlav question. My mother was diagnosed with cancer and lives in another state. I have had to go to be primary caregiver during this time. All together I will be gone 2 months. I have enough sick time to cover this and completed my FMLA paperwork. So far work has been supportive. There is a promotional process coming up, but I will not be back in town at the time of the process. I asked to do the process remotely but I have not gotten an answer. Are they required to accommodate me taking this process, or let me take it upon my return?

  21. I have been approved for intermittent fmla I was wondering if my supervisor can ask me for medical documentation every time I need to take off for my condition.

Speak Your Mind